Lewis v. Blackburn

• Decision Date: 24 January 1983
• Docket Number: No. C-C-82-565-M.,C-C-82-565-M.
• Citation: 555 F. Supp. 713
• Court: U.S. District Court — Western District of North Carolina
• Parties: Georgia J. LEWIS, Plaintiff, v. R. Max BLACKBURN, Original Defendant, and Frank W. Snepp, Jr., Additional Defendant.

555 F. Supp. 713

Georgia J. LEWIS, Plaintiff, v. R. Max BLACKBURN, Original Defendant, and Frank W. Snepp, Jr., Additional Defendant.

No. C-C-82-565-M.

United States District Court, W.D. North Carolina, Charlotte Division.

January 13, 1983.

Supplemental Opinion January 24, 1983.

COPYRIGHT MATERIAL OMITTED

George Daly, Charlotte, N.C., for plaintiff.

Millard R. Rich, Jr., Deputy Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., and Jane S. Barkley, Legal Officer, Office of the Clerk of Superior Court, Charlotte, N.C., for defendants.

MEMORANDUM OF DECISION AND FINAL ORDER

McMILLAN, District Judge.

FINDINGS OF FACT

Plaintiff, Georgia J. Lewis, since August 14, 1978, has been one of a score or more of magistrates in the state court system for Mecklenburg County, North Carolina. Plaintiff is a college graduate, experienced in child welfare work, probation counseling and paralegal work. She was first appointed on August 14, 1978, to fill an unexpired term; she was reappointed for two years beginning January 1, 1979, and she was again reappointed on January 1, 1980, for a two-year term expiring December 31, 1982. Her recent service was as a civil court magistrate; with two others she shared a case load of about 22,000 cases a year (about 145 cases a week per judge). Her work has been satisfactory; until September 1982 there was no record of any dissatisfaction on the part of appointing authorities with her performance as magistrate.

Under General Statutes of North Carolina 7A-170, "a magistrate is an officer of the district court .... A magistrate possesses all the powers of his office at all times during his term."

Under Chapter 7A-171 magistrates are (a) nominated by the Clerk of the Superior Court; (b) appointed from the nominees by the senior resident Superior Court judge; and, in Mecklenburg County, they are (c) supervised by the chief district judge.

The defendant R. Max Blackburn is the Clerk of the Superior Court; the defendant Frank W. Snepp, Jr., is the senior resident Superior Court judge; and in the summer of 1982 Chase Saunders was the chief district judge and the supervisor of the plaintiff.

On September 8, 1982, the defendant Blackburn wrote plaintiff a letter which, in pertinent part, said:

"Since you have had difficulty in working with departments with important responsibilities and have refused to keep records as prescribed by the `Records Keeping Manual' I cannot consider nominating you to the office of Magistrate for another term" (emphasis added).

* * * * * *

Plaintiff talked with defendant Blackburn about his unfavorable letter and, getting no satisfaction, brought this suit seeking relief for alleged violations of her rights of free speech and redress of grievances under the First Amendment to the Constitution of the United States. A hearing was conducted on November 22, 1982, which resulted in an order dated December 3, 1982, restraining defendant Blackburn from making nominations which would fill plaintiff's then job with any other person. Further hearings were conducted on December 22, 1982, December 23, 1982, December 30, 1982, and January 10, 1983. Judge Frank W. Snepp, Jr., the senior resident Superior Court judge, was made a party; by agreement of counsel a final hearing on all matters remaining at issue among all parties was conducted on January 10, 1983, and the case is now ready for final decision. The court has filed previous orders and memoranda on December 3, December 23, and two on December 30, 1982. This order duplicates substantial portions of those previous memoranda and orders. This order is based upon the entire record of the case and all the facts found in those previous memoranda and orders; and the omission of any previous finding from this order does not mean that such finding has been abandoned as a basis for this order.

* * * * * *

Defendant Blackburn's September 8, 1982 letter based his decision not to renominate plaintiff in substantial part on plaintiff's refusal to keep records "as prescribed by the Records Keeping Manual."

On July 13, 1982, the defendant Blackburn had issued a memorandum to all civil trial magistrates directing that in addition to microfilming judgments (which they were already doing), magistrates would "begin microfilming the following documents upon completion of a Small Claims Case:

1. The complaint;

2. All processes issued and returns made thereon;

3. Judgments;

4. All orders and other documents signed by you."

The statute Blackburn relied on for this order, N.C.G.S. 7A-175, reads:

"A magistrate shall keep such documents, accounts, and other records, under the general supervision of the clerk of superior court, as may be prescribed by the Administrative Office of the Courts." (Emphasis added.)

The "Record Keeping Manual" of the Administrative Office of the Courts (Plaintiff's Exhibit 48) to which Blackburn referred in his September 8, 1982 letter, does not require the magistrates to perform the microfilming duty. The pertinent section of the AOC regulations, Rule 4E, reads:

E. Microfilm. Each small claims case shall be microfilmed by one of the methods described in Rule 2. Regardless of the method chosen, the clerk shall microfilm the following documents:

the complaint;

all processes issued and returns made thereon;

judgments;

all Orders and other documents signed by the judge or magistrate. (Emphasis added.)

Rule 4E quite clearly places the burden of microfilming upon the "clerk."

When plaintiff received the directive from the clerk she challenged the propriety of the order. At that time she had an extra heavy case load because one of the magistrates was out of service; she had several hundred cases on her desk; she was, as usual, doing her own typing; and she did not feel that she should stop doing her judicial work and start doing additional microfilming for the clerk.

Plaintiff spoke to her supervisor, Chief Judge Chase Saunders, to see if some relief, such as extra clerical help, could be obtained. At Judge Saunders' suggestion (page 44, Transcript of November 22, 1982 hearing), she talked to Senator Parks Helms and Representative Louise Brennan of the Mecklenburg legislative delegation about possibly getting a microfilming clerk. She talked, at Judge Saunders' suggestion, with defendant Judge Frank Snepp. She also talked with a person from the Administrative Office of the Courts, and with Tom Ray, Chairman of the Board of County Commissioners, She talked with the other magistrates. Chief Judge Saunders told her that he thought the clerk had the authority to require the magistrates to do the microfilming. Eventually, after a week or two of futile explorations, she complied with the directive to perform the extra clerical work.

On the day the plaintiff received her "no renomination" letter of September 8, 1982, she talked with Mr. Blackburn, who mentioned the controversy over microfilming in connection with his action. At that time he told her that he would not have plaintiff going over his head to talk with judges or county commissioners or legislators, and that he could "hire and fire who I please, whatever the reason."

I find as a fact that the reason Blackburn did not recommend plaintiff for renomination was that she protested the additional clerical duties and because she talked about the problems with other persons concerned in the administration of the courts including District Judge Saunders, her supervisor; a Superior Court judge; a county commissioner; members of the legislative delegation; and a person from the Administrative Office of the Courts.

Blackburn had never spoken to the plaintiff about his intention not to renominate her until he wrote the September 1982 letter. The only controversial incident involving plaintiff which had happened during or before mid-1981 was a mix-up about a parking space that had been assigned to her— the sort of thing that happens in government parking lots. A government employee who has an assigned parking space and has not had some problems with it must be rare indeed; plaintiff's account of that incident is more plausible than defendant Blackburn's. Blackburn himself testified the rhubarb over parking played no part in his decision.

Blackburn contended that he had decided not to recommend plaintiff some time back in "the middle" of 1981, twelve or fifteen months earlier. The reasons for not recommending plaintiff, he said, were numerous complaints from lawyers, unsuccessful litigants and co-workers regarding plaintiff's attitude and her conduct in court. I do not believe nor find that those were the genuine reasons. A review of plaintiff's exhibits 9 through 28 shows that all or nearly all the complaints documented by defendant involved events which did not occur until after the mid-1981 time when, Blackburn says, he had already decided not to renominate plaintiff. The earliest such complaint involves a difference with a litigant about interest on a judgment, which took place on the 3rd of July, 1981 (Plaintiff's Exhibit 16). The fact that all but one of the complaints took place after Blackburn says he had made his decision leaves the court with the conclusion—and I find as a fact—that those "complaints" had no bearing on his renomination decision.

* * * * * *

The magistrate is a judicial officer. The functioning and the integrity of the office are dependent upon the protection of that status. The legislature placed in the Administrative Office of the Courts the authority to designate those records which the magistrate might be required to keep. The clerk's authority is limited to the supervision of such record keeping; but it does not appear from Chapter 7A-175 of the General Statutes of North Carolina that the Clerk has any authority to require the magistrate to produce any records, or to keep any records not prescribed by the Administrative Office of the Courts.

Regardless, however, of the merits of that particular issue (I find the plaintiff has...